England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE BAILEY
2RMO2010

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/03/2017

Lord Justice Lewison:

1. Ms Evelyn Dove and Ms Elaine Dove are twin sisters who are or were joint tenants of a council flat at 61 Highfield Tower, Romford. Their landlord, Havering LBC, claimed possession of the flat from them on the grounds that (a) at the time when notice to quit was served upon them neither of them occupied the flat as her only or principal home; and (b) there were serious rent arrears that justified the making of a possession order. HHJ Bailey acceded to Havering's claim and made a possession order. They now appeal with the permission of Kitchin LJ.
2. Before engaging with the substantive points that arise on the appeal there are preliminary procedural points that must be addressed. Ms Evelyn Dove (but not Ms Elaine Dove) had been professionally represented by virtue of public funding. Very shortly before the trial that funding was withdrawn. In consequence on 20 April 2015, the first morning of the listed trial, counsel for Ms Evelyn Dove applied for an adjournment. Ms Elaine Dove did not join in that application. The judge referred to the lengthy delays that had occurred in progressing the case. The claim form had been issued in October 2012 and it had still not come to trial by April 2015. He noted a number of failures by the Misses Dove to comply with directions even when they were legally represented. He noted that the rent had not been paid in full since November 2011 but that rental payments were now being made at the rate of £19.58 per week although the rent was £110 per week with the result that arrears were mounting. He thought that it was "highly probable" that Havering would be able to demonstrate the necessary arrears to obtain a possession order. He noted that although the trial had been fixed since January 2015 no application for an extension of legal aid to cover the trial had been made until the week before trial. Had it been made earlier any appeal against the refusal of legal aid could have been dealt with without loss of the trial date. Thus the judge concluded that Ms Evelyn Dove's difficulties over legal aid were of her own making. It had been conceded by counsel for Ms Evelyn Dove that if she had been privately represented the adjournment would have to be refused. The judge referred obliquely to the approach of this court to relief against sanctions, and also observed that there were no unassigned cases that he could deal with if the trial were to be adjourned. Nevertheless he decided that although the adjournment had to be refused he would postpone the start of the trial until the following day to enable the two defendants, now both in person, to prepare to defend the case. He remarked that they both appeared to him to be "perfectly articulate and intelligent young ladies." The judge also had the benefit of a full skeleton argument prepared by counsel on Ms Evelyn Dove's behalf which covered all the legal issues likely to arise at trial.
3. Shortly before the trial Ms Evelyn Dove had made a witness statement in which she referred to a number of health problems from which she suffered. These included a lower oesophageal incompetent sphincter which gave rise to uncontrollable vomiting. However, it does not appear that the application for the adjournment was made on medical grounds alone. Although Ms Evelyn Dove's evidence described her medical problems, many of which were historic, her evidence did not say that those problems incapacitated her to such an extent that she would be unable to conduct a trial. She had participated as a self-represented litigant in proceedings in the FTT (Social Entitlement Chamber) in an appeal against Havering's decision to withdraw housing benefit on the ground that 61 Highfield Tower was not the home that she normally occupied. Much of the evidence that Havering proposed to rely on at trial was the same evidence that it had deployed before the FTT.
4. Where an application for an adjournment is made on medical grounds the court will normally expect to see evidence from a medical practitioner familiar with the patient and his or her medical condition. That evidence should identify what the medical condition is, and what features of it prevent participation in the trial process. The evidence should also provide a reasoned prognosis and describe what arrangements short of an adjournment could be made to accommodate a party's difficulties. Even then, the ultimate decision is for the court to make. The authorities on the subject are collected and discussed by Warby J in Decker v Hopcraft [2015] EWHC 1170 (QB). No such material was placed before the judge. Moreover, the nature of Ms Evelyn Dove's medical complaint appears to be chronic and of long standing with the consequence that the same problem would have arisen on any adjourned hearing.
5. Mr Manning submits that the judge misdirected himself by approaching the application as if it were an application for relief against sanctions. There was no sanction involved in the application for the adjournment which was brought about by the unexpected and late withdrawal of legal aid. Thus the judge did not adequately balance the prejudice that would be caused to the Misses Dove by having to represent themselves against the prejudice (or lack of it) that would be caused to Havering as a result of an adjournment. That failure amounts, he says, to an error of principle such that this court should intervene. In support of that submission he relied on the decision of this court in Bowden v Homerton University Hospital NHS Foundation Trust [2012] EWCA Civ 245. That was a case in which the claimant had recovered judgment in a clinical negligence case for damages to be assessed. The hearing of the quantum trial had been fixed. The claimant claimed £5.4 million and the defendant valued the claim at £200,000. On any view then the result, subject to the question of costs, would be a substantial sum payable to the claimant. The time-estimate for trial was eight days and the evidence included eleven expert reports. Shortly before trial, through no fault of his own, the claimant parted company with his solicitors, and he applied for an adjournment of the trial. The judge refused the amendment but this court allowed an appeal. Lloyd LJ (with whom Ward LJ) agreed said at [20] that the judge had not "conducted a proper balancing exercise" as between the parties. What was in the balance as far as the defendants were concerned was delay, disruption and the incurring of costs. However, as Lloyd LJ made clear at [24] each case turns on its own facts and on different facts "it would be entirely right for the court to adopt a much stronger line against the claimant … who seeks a very late adjournment of a possibly already postponed trial date following a very late parting of company with the party's solicitors." An adjournment was granted but on terms that the claimant paid the costs thrown away.
6. What the judge said was this:

"Having regard to all the observations (without rehearsing them I hasten to add) that have fallen from the Court of Appeal in Mitchell and Denton, I consider that I have no realistic alternative but to refuse this application."

7. The judge was clearly familiar with those two cases. It is, however, clear that he did not approach the application as if it were an application for relief against sanctions. If he had done so he would have applied the well-known three stage test in Denton v TH White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3296. Rather, in my judgment he was referring to the serious consequences, discussed in Denton, of adjourning trials at the last moment. In Denton at [45] the court stressed the importance of ensuring that "hearings, once fixed, are not adjourned." In Denton itself the grant of relief against sanctions had necessitated the adjournment of the trial. This court held that the judge had been plainly wrong. In their joint judgment Lord Dyson MR and Vos LJ said:

"An adjournment would result in the protraction of proceedings which had already dragged on for far too long. It would cause a waste of court resources and generate substantial extra costs for the parties. It would cause inconvenience to a large number of busy people, who had carved out space in their diaries for the anticipated trial."

8. Although Jackson LJ delivered a judgment which differed in some of its reasoning he said at [89]:

"The judge's order that the claimants pay "the defendant's costs thrown away by the vacation of the trial" does not begin to meet the justice of the case. There are many hidden costs flowing from adjournment of the trial: witness statements and reports need updating; fee earners handling the litigation may change with a need for newcomers to read into the case; both legal teams continue to work upon the litigation and so forth. In addition to the increased costs there is wastage of resources. Lawyers, experts, factual witnesses and other busy people who had cleared their diaries to attend the trial (probably cancelling other commitments) will have to clear their diaries yet again for another trial a year later. There is also the continuing strain on the parties to consider. What litigants need is finality, not procrastination. Quite apart from its impact on the immediate parties in Denton, the judge's order has caused unnecessary delay for many other litigants awaiting their day in court."

9. These considerations apply whatever the reason for the adjournment. There is no doubt that modern case management places considerable importance on not losing trial dates once they have been fixed. This is also reflected, for example, in PD 29 para 7.4 (1) which says:

"The court will not allow a failure to comply with directions to lead to the postponement of the trial unless the circumstances are exceptional."

10. Accordingly I do not consider that it can be said that the judge was wrong in his approach to a last minute application to adjourn the trial. In addition to the general undesirability of adjourning a trial to which all three members of the court adverted in Denton, there are, in my judgment, a number of factors specific to this case that militated against an adjournment. First the application was made very late. Second, the cause of the difficulty was Ms Dove's legal representatives' tardiness in applying for an extension of legal aid. Third, the trial date had already been adjourned once before. Fourth, rent at the full rate had not been paid for many years. This was not simply a case of disruption to Havering: the debt was increasing week by week. There was no realistic prospect that the Misses Dove could pay off the arrears or even pay the current rent. Fifth, there was no realistic prospect that the Misses Dove could pay the costs thrown away by an adjournment: and indeed there is no record of any offer by them to do so. Sixth, an adjournment would have caused disruption and inconvenience to other court users. Seventh, there was no certainty that an adjournment would serve any useful purpose. Set against that was the difficulty, which the judge recognised, that the Misses Dove would face in defending the case without legal representation. What weight to give each of these factors was essentially a matter for the judge. This court should not interfere with case-management decisions of this kind unless compelled to do so. I would reject this ground of appeal.
11. The second procedural ground on which complaint is made is that Havering produced to the judge a DVD recording of an inspection of the flat at Highfield Tower. This was not a DVD that was new to the Misses Dove as it had been deployed by Havering in earlier proceedings in the FTT (Social Entitlement Chamber) to which Havering and the Misses Dove were both parties, and to which I refer further below. It was referred to extensively in the FTT's reasons for dismissing the appeals of both the Misses Dove, and copies of those reasons were exhibited to the witness statement of Mr Earl Baker in support of Havering's claim for possession. Mr Manning (who of course did not appear at trial) submits that they had no notice that Havering would rely on this DVD and were unable to object to its introduction into evidence. We have no transcript of the trial although Havering have been pressing for one. But Mrs Lovegrove, who did appear at trial, says that when Ms Elaine Dove was cross-examining Ms Hilton, one of Havering's witnesses, she (Ms Dove) herself referred to the DVD and said that it showed occupation of the flat as a home and that it supported the veracity of certain photographs that she had produced. The judge then asked whether he could see the DVD. No one objected and so he did.
12. Mr Manning suggests that Miss Evelyn Dove was deprived of an opportunity to give evidence about the contents of that DVD. However, that submission is belied by Ms Elaine Dove's witness statement of 31 March 2014, paragraph 10 which refers in detail to that DVD and explains why Ms Dove thought that the DVD was misleading. It must have been recognised by Ms Evelyn Dove (or her legal advisers when she was represented) that the contents of the DVD were in play. In addition as I have said the FTT referred to the DVD in some detail so its contents (even if not the DVD itself) formed an important part of Havering's case. I would reject this ground of appeal too.
13. In addition under this head Mr Manning submits that it was procedurally unfair for the judge to have continued with the trial on the third and last day. By that stage Havering's evidence had all been heard and its case had been closed. It was now for the Misses Dove to give evidence. However, when the judge came into court for the last day of the trial Ms Evelyn Dove was not present. We were told (without contradiction) that Ms Elaine Dove explained to the judge that her sister had fallen ill. But no more was said about the nature of the illness and no application for an adjournment was made. Ms Evelyn Dove had given evidence in writing which the judge admitted and considered. In those circumstances we do not consider that the judge can be criticised for continuing with the trial.
14. That clears the way for a consideration of the substantial issues on the appeal. In order for a tenancy to be a secure tenancy at any particular time, the "tenant condition" set out in section 81 of the Housing Act 1985 must be satisfied. That condition is:

"… that the tenant is an individual and occupies the dwelling-house as his only or principal home; or, where the tenancy is a joint tenancy, that each of the joint tenants is an individual and at least one of them occupies the dwelling-house as his only or principal home."

15. This was a joint tenancy. The first part of the condition is satisfied because both Ms Evelyn Dove and Ms Elaine Dove are individuals. The issue under this head is whether at least one of them occupied the flat as her only or principal home at the time when the notice to quit would otherwise have taken effect. If the tenant condition is satisfied at any given time the tenancy is a secure tenancy which can only be terminated in one of the ways permitted by the Housing Act 1985. One of those ways is by obtaining a court order for possession and then executing it: Housing Act 1985 s. 82 (1A). But the court may not make a possession order except in accordance with section 84. Section 84 (1) refers to a number of grounds on which possession order may be made. They include:

"Rent lawfully due from the tenant has not been paid…"

16. If possession is claimed on that ground, then the court may not make an order for possession unless it considers it reasonable to do so: section 84 (2) (a). In considering that question the court has wide powers to suspend the operation of the order or postpone the date for possession. However, if it decides to suspend the order or postpone the date for possession it must impose terms about payment of arrears and current rent unless it considers that to do so would cause exceptional hardship or would otherwise be unreasonable: section 85.
17. There is now a considerable body of learning on what amounts to occupation of a dwelling as an only or principal home. There are two parts to the question: (a) does the person in question occupy the dwelling as a home and (b) if so, does he or she occupy it as his or her only or principal home?
18. Part of this body of learning derives from cases decided under the Rent Acts where the issue was whether a person occupied a dwelling "as his residence". The courts developed the principle that continuous physical presence in a dwelling was not necessary to maintain occupation as a residence. It thus became necessary to lay down some guidelines to differentiate between cases in which occupation as a residence had been maintained and those in which it had not. Many of these cases are discussed and summarised by Etherton LJ in Islington LBC v Boyle [2011] EWCA Civ 1450, [2012] PTSR 1093. As Etherton LJ went on to point out at [56] the test under the Housing Act is more stringent. It is not enough that the person in question occupies a dwelling as a home: he must occupy it as his only or principal home.
19. In view of the emphasis that Mr Manning, on behalf of the Doves, placed on the question of an intention to return, I should quote what Etherton LJ said about that at [62]:

"Where the defendant is physically absent from the dwelling, in which the defendant formerly lived as his or her only or principal home, the defendant's intentions about living there again as the sole or principal home will be critical to the question whether the tenant condition is satisfied. Plainly, without that intention, the tenant condition cannot be satisfied. It is not sufficient, however, for the defendant merely to give oral evidence of his or her subjective belief and intention. The credibility of the defendant's evidence as to belief and intention must be assessed by reference to objectively ascertained facts."

20. It is important to note that this passage deals with a case in which the defendant asserts that there has been a change in his or her pattern of residence which will revert back to a former state of affairs. It does not deal with the situation in which there is no evidence that the pattern of residence is likely to change in the future.
21. Etherton LJ summarised the effect of the case law on the question of occupation as an only or principal home at [65]:

"First, the length or other circumstances of the tenant's absence may raise the inference that the dwelling which is the subject of the proceedings ceased to be the tenant's principal home so as to cast on the tenant the burden of proving the contrary. Secondly, in order to rebut that presumption, it is not sufficient for the tenant to prove that at the material time it was his or her subjective intention and belief that the dwelling remained the principal home. The objective facts must bear out the reality of that belief and intention both in the sense that the intention and belief are or were genuinely held and also that the intention and belief themselves reflect reality. The reason for the absence, the length and other circumstances of the absence and (where relevant) the anticipated future duration of the absence, as well as statements and conduct of the tenant, will all be relevant to that objective assessment. Thirdly, the court's focus is on the enduring intention of the tenant, which, depending on the circumstances, may not be displaced by fleeting changes of mind. Fourthly, the issue is one of fact to be determined in the light of the evidence as a whole, and in respect of which the trial judge's findings of primary fact can only be overturned on appeal if they were perverse in the sense that I have mentioned earlier; but the appeal court may in an appropriate case substitute its own inferences drawn from those primary facts."

22. In my judgment these principles are engaged not only where the tenant is absent from the property in the sense of not being physically present at all. They are also engaged where the tenant ceases to occupy the property as his or her only or main home even if he or she continues to occupy it as a home; as, for example, where what had once been the tenant's only home becomes no more than a weekend or holiday home. Moreover the question of an intention to return (which often features in these cases) is in reality an intention to revert to a previous pattern of existence. This was the case for instance in Crawley BC v Sawyer (1987) 20 HLR 98 (the tenant had occupied the dwelling as his only home for three years and went to live with his girlfriend temporarily but intending to return); Camden LBC v Goldenberg (1996) 28 HLR 727 (D lived with his grandmother for four years and after an absence abroad returned to live with her. He stayed in a friends' house while they were on holiday, intending to find accommodation of his own, but when that failed he moved back into his grandmother's flat).
23. In this case Havering had been suspicious for some time whether either of the Misses Dove was occupying the flat as her only or principal home. It began an investigation in 2003 but that was inconclusive. It launched a fresh investigation in 2010 as a result of an anonymous tip off. One of Havering's investigators, Ms Holder, visited the flat on 22 September 2010 and found no one in occupation. Following Ms Holder's departure from Havering the investigation was continued by Mr Walshe, who gave evidence before the judge. Mr Walshe and his team concluded that the evidence showed that neither Ms Dove occupied the flat as her only or principal home, in consequence of which Havering withdrew housing benefit on 28 September 2011; and served notice to quit on 10 October 2011 expiring on 14 November 2011.
24. Both Ms Elaine and Ms Evelyn Dove appealed against the withdrawal of housing benefit. Havering was the Respondent to both appeals. Their appeals were heard by the FTT (Social Entitlement Chamber). FTTJ Krelman dismissed both appeals by decisions promulgated on 4 June 2013 supplemented by more detailed reasons given in August 2013. In each case the FTTJ described the issue as whether the appellant "was in occupation of number 61 as her principal home".
25. The judge set out at some length the findings made by the FTTJ. The most salient are as follows. Ms Elaine Dove has had an intimate relationship with a male partner called Andrew Jeffrey who lives in Kilburn. It has lasted for some thirty years. Ms Elaine Dove is with her partner in Kilburn for four out of seven days a week on average. She has a key to his flat. They share the cooking at Mr Jeffrey's flat; she nominated him on her passport as an emergency contact; and some post was addressed to her there. She had also given the police that address as her address in the course of an investigation in which she was involved. A search of the flat at Highfield Tower in July 2011, recorded on DVD, showed a flat not in regular occupation. The FTTJ concluded on the basis of the evidence that the flat at Highfield Tower was not in full and regular use as a home but gave the impression of a storage facility for goods bought by Ms Elaine Dove. The FTTJ also drew attention to very low consumption of gas and electricity.
26. In the case of Ms Evelyn Dove the FTTJ found that she had a long-standing intimate relationship with Lawrence Wiles who lived in Walthamstow. That relationship had been going on for about 20 years. She spent up to three nights a week and weekends at his flat: that is five days a week on average. She has a key to the flat. This led the FTTJ to "the inescapable conclusion that she spent the majority of time at [Mr Wiles' flat]". In addition to the search already referred to the FTTJ referred to activity shown by Ms Evelyn Dove's bank account which linked Ms Evelyn Dove to the Walthamstow area. This corroborated the conclusion that Walthamstow was where she spent the majority of her time. Although she was registered with a GP in the area of Highfield Towers, her frequent hospital visits took place close to Walthamstow rather than at the hospital nearest to Highfield Tower. Ms Evelyn Dove also made regular trips to Italy where she appears to have bought earthenware and the like which she sells on eBay.
27. Thus in each case the FTTJ concluded that neither Ms Elaine Dove nor Ms Evelyn Dove occupied the flat at Highfield Tower as her principal home. Ms Evelyn Dove tried to appeal to the Upper Tribunal, but permission to appeal was refused on 27 January 2014. Ms Elaine Dove also tried to appeal but permission to appeal was refused in her case on 17 March 2014.
28. There was considerable debate before the judge (repeated in the Appellant's Notices and the skeleton arguments) about whether the decision of the FTT created an issue estoppel between Havering and the Misses Dove. I do not consider that we are required to resolve that issue, because the judge heard the evidence and made his own findings of fact.
29. It is of critical importance to appreciate that the case advanced before the judge was not that there had been any change in circumstances since the decisions of the FTT; but that those decisions were wrong. Nor was it suggested by either Ms Elaine or Ms Evelyn Dove that their settled patterns of life would change in the foreseeable future. At [23] to [30] the judge set out the evidence that had been before him. At [34] he turned to consider that evidence untrammelled by the findings of the FTT. In the case of Ms Elaine Dove he said that it was plain that she had had a long term relationship with Mr Jeffrey and that she spent "three or four days out of each seven at [his flat], but on occasion it would appear more". She used his computer, had post sent to her at that address and he noted that the consumption of electricity at Highfield Tower was "appreciably less" than might be expected to be used by two adults living in a flat. He also noted that in the course of her evidence Ms Dove had said that she was "going home" to stay with her boyfriend at the weekend. He referred also to the evidence of the DVD which did not suggest a kitchen or bathroom used by either Ms Dove as part of their principal home. He described in some detail what he had seen, referring in several places to the general impression of a storage space rather than a home. He also recorded that when the DVD was made the council officer who made it described the flat as having a "musty smell" suggestive of lack of use.
30. In the case of Ms Evelyn Dove he considered that the case was "much stronger". The evidence was that she spent considerable time with Mr Wiles. Her e-Bay activities and bank statements all indicated residence in Walthamstow rather than in Romford, as did her use of Whipps' Cross hospital. He also referred to admissions made by Mr Wiles to Mr Walshe which in his view went a long way to making Havering's case.
31. At [39] the judge said that he understood why they wished "to be in a position to have their own place – their own space – somewhere to which they can return in order either to be alone or if the worst happens and their relationship breaks down a place to live." But there was no evidence that either Ms Evelyn or Ms Elaine Dove had any actual intention to change the settled pattern of life which they were living. He held therefore that he "would have had to have" reached the same conclusion as the FTT.
32. The reason why the judge expressed himself in that conditional way was that he held at [33] that it was not open to him to reach a different conclusion from that reached by the FTT. The first ground of appeal, therefore, is that the judge was wrong in holding that there was some form of estoppel that bound him to follow the FTT. For my part I regard that as irrelevant, given that the judge also considered the evidence for himself. Although it raises interesting questions they do not need to be answered for the purpose of disposing of this appeal. The judge in fact considered the evidence for himself and came to the same conclusion as the FTTJ.
33. The issue before the judge was not of course whether either Ms Dove was occupying the flat at Highfield Tower as a home. On the basis of the judge's findings of fact one or other of them may or may not have been. It was whether either of them was occupying that flat as her principal home. The judge's findings of fact are, in my judgment, clear to the effect that neither of them was. As I have said each of them had a settled way of life and there was no suggestion that it would change in the future. This is not, therefore, a case which turns on any intention to return or revert to a previous pattern of life. The question in cases which turn on an intention to return, as explained by Thorpe LJ in Goldenberg at 733, is whether a period of absence breaks the continuity of residence. In a case such as the present where the pattern of residence has been the same throughout the period under consideration there has been no break in continuity. So the question is a different one: is the pattern of residence such that either Ms Dove is occupying the flat at Highfield Tower as her principal home?
34. Mr Manning said that the judge failed to consider the intention of either Ms Dove as regards the flat at Highfield Tower. I do not accept that submission. Their intentions, in so far as there was any evidence on that topic, are summarised by the judge at [39]. An intention to retain a flat as a place to be alone is certainly a factor in considering whether the flat is occupied as a home, but it is of little help in deciding whether that flat is a person's principal home. I do not, of course, suggest that that question is to be decided by a simple "day count." But I do not think that the judge decided the question on that basis. He looked at all the evidence (including that adduced before the FTT) in the round.
35. In my judgment on the facts that he found the judge was entitled to conclude that neither Ms Elaine Dove nor Ms Evelyn Dove was occupying the flat as her principal home when the notice to quit was served and took effect. Neither, therefore, was a secure tenant. It follows that Havering was entitled to possession without the need to prove a statutory ground. I would dismiss the appeal.

Lord Justice Patten:

36. I agree.